“Climate refugees” revisited: a closer look at the Tuvalu decision
Vernon Rive . 14/08/2014 11:41:04 p.m.
The origin of phrase “environmental refugees" is typically credited to a United Nations Environment Program researcher Essam El-Hinnawi in a 1985 paper with that phrase as its title. The concept of “Climate change refugees” had been in circulation amongst academic and NGOs circles since the late 1970s and in recent years has entered popular consciousness through widespread media coverage assuming ever-increasing levels of drama and sensationalism.
In the South Pacific context, the high water mark of media spin on the issue might be represented by Al Gore's mention in his 2006 documentary An Inconvenient Truth of the supposed evacuation of the residents of a number of low-lying islands in the Pacific Ocean to New Zealand because of the effects of global warming, an observation specifically rejected as baseless in the 2007 UK High Court decision in Dimmock v Secretary of State for Education and Skills.
Widespread and consistent rejection within academic and policy circles of both the concept and terminology of "environmental refugee" or "climate change refugee" has not, it seems, deterred commentators (and even some non-governmental organisations (PDF) who should know better) from continuing to adopt the labels.
So it has been no particular surprise that when a family from Tuvalu holding expired visitors permits appealed to the New Zealand Immigration and Protection Tribunal against deportation citing, amongst other things, hardship resulting from climate change-related environmental degradation in their home country - and secured the right to stay (PDF) - another round of sensationalist international media coverage has ensued.
As is typically the case with the reporting of court decisions, within the confines of a six-sentence story or three-minute clip, subtle (and sometimes not so subtle) points are overlooked or misreported. The surface needs scratching a little deeper.
This article by Prof Jane McAdam at UNSW Law does exactly that. Prof McAdam has published widely on issues of forced migration and has rightly established a reputation as a leading international academic researcher, analyst and advisor on displacement/forced migration and refugee law. She's been living and breathing climate change-related international and domestic law for many years and has unsurprisingly become the ‘go to' legal academic for commentary and advice on these issues.
My analysis generally lines up with hers on the interpretation and significance of the NZ IPT Tuvalu decision. But I draw some additional, and possibly slightly different, points from the case to those outlined by Prof McAdam.
We both agree that media descriptions of the IPT decision as "the first climate refugees" are wildly off the mark. The Tribunal devoted 37 pages of carefully reasoned analysis to conclude exactly the opposite. Like the earlier case dealing with i-Kiribati national Ione Teitiota and his family, the IPT (affirmed on appeal by New Zealand's High Court, and then Court of Appeal) held - uncontroversially from the perspective of most refugee practitioners and commentators - that although the impacts of climate change on low-lying atoll such as Kiribati and Tuvalu are real and concerning, except in very specific circumstances (which did not apply in either case) people fleeing climate change are not "refugees" in the legal sense. Nor could they be regarded as "protected persons" under the International Covenant on Civil and Political Rights or the Convention against Torture.
Where the recent case involving a Tuvaluan family differed from the line of decisions in the Teitiota litigation was that the appellants from Tuvalu were able to appeal against deportation under a particular provision of New Zealand's immigration legislation: section 207 of the Immigration Act 2009. It states:
The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
The statutory references to "exceptional circumstances" and "in all the circumstances" require, as you would expect, the full factual matrix surrounding the appellants and their appeal against deportation to be analysed. That is what the Tribunal did.
There were a number of compelling circumstances which took the case out of the ordinary. The Tuvalu-based husband was among the remnants of a sizeable family which had effectively relocated to New Zealand. All but one of his six sisters had secured residency in New Zealand and established a strong family base here. His elderly mother - also resident in New Zealand - required care and support relying on her son to perform that role. The couple had produced two children while in New Zealand. They were well settled and integrated into their New Zealand family and society. It appeared that there may have been legitimate “pathways” to legal residency which, had they been better pursued at the right time, would have regularised their New Zealand residency.
Alongside the family circumstances and facts relating to the residency process, factors relating to climate change were also advanced, and accepted as factually credible by the Tribunal. These included regular events of seawater inundation resulting in coastal erosion and impact on food production. Referring to the 1989 United Nations Convention on the Rights of the Child, the Tribunal recorded a specific finding (at paragraph 25) that the young age of the two children (five and three years):
“…makes them inherently more vulnerable to natural disasters and the adverse impact of climate change as noted above.”
As Professor McAdam notes, “in the end, the Tribunal allowed the family to stay in New Zealand on humanitarian grounds.” She goes on to note:
“The Tribunal’s decision to let the family stay in New Zealand as permanent residents was not based on the impacts of climate change in Tuvalu. Indeed, the Tribunal deliberately refrained from making a finding on this point. It did not need to do so because there were other exceptional humanitarian circumstances – namely, strong family ties – that justified granting them resident visas.”
I agree that the decision was not "based on” the impacts of climate change in Tuvalu. The evidence and submissions relating to climate change-related hardship that would be suffered if the family were required to return would not, alone, have been enough to satisfy the stringent "exceptional humanitarian grounds" test. It’s fairly clear that the family would have been granted humanitarian relief in any event because of the other compelling factors at play.
However – and this is where I take a slightly different tack to Professor McAdam – that is not to say that the climate change-related factors were not taken into account at all as part of the wider factual assessment required under section 207.
As I read the decision, the Tribunal accepted not only that the climate change-related factors cited on behalf of the Tuvaluan family were legally relevant in principle, but were in fact taken into account when reaching a conclusion on exceptional circumstances of a humanitarian nature. I take that point from paragraph 30:
[30] The Tribunal is satisfied that, when the above matters are taken into account on a cumulative basis, there are exceptional circumstances of a humanitarian nature, which would make it unjust or unduly harsh for the appellants to be removed from New Zealand.
The “above matters” were not specifically identified in paragraph 30. Paragraph 30 is immediately preceded by three paragraphs under the heading "Climate Change and Environmental Degradation as a Humanitarian Circumstance”. In paragraph 29 (directly “above” paragraph 30) the Tribunal refers to the companion refugee and protection decision in the same set of appeals, and cites a passage from para [16] of that decision:
“…Population growth was already placing pressure on sensitive environments and major sources of food security and livelihoods, and these effects can be exacerbated by adverse effects of climate change. Drought was anticipated to increase in severity in the future. The low elevation and limited land area of Tuvalu meant that the most direct and severe anticipated effects of climate change will be an increasing risk of coastal erosion, flooding and inundation. Other anticipated direct effects were stated to include an increase in dengue fever risks and water borne diseases, an increase in human stress, and decreasing agricultural yields.”
I think the natural interpretation of the words in paragraph [30] is that the Tribunal had regard to all of the surrounding facts and circumstances - the climate change-related ones alongside the family connections and other matters. Climate change was not an overriding factor. But it was there as part of the mix. The combination of the strong familial connections in New Zealand, the husband’s obligations towards his mother, the peculiarities of his residency application process, and the climate change considerations cumulatively amounted to "exceptional circumstances of a humanitarian nature, which would make it and just or unduly harsh for the appellants to be removed from New Zealand."
The Tribunal - no doubt acutely alive to the potential for further applicants relying on climate change-related circumstances - considered it necessary to manage expectations regarding that issue. At paragraph 33, it said:
“It is not, however, necessary on the facts of this appeal to reach any conclusion on this [climate change] issue in relation to any of the appellants as the Tribunal is satisfied that by reason of the other factors identified in this case, there are exceptional circumstances of a humanitarian”
In the context of the decision as a whole, I don’t read that as inferring that the climate change factors were put to one side entirely.
If that had been the intention, paragraph 30 would sit a little awkwardly: at best ambiguous (was the reference to "above matters" meant to be to everything above except climate change, or, something broader?) at worst, just inconsistent with paragraph 33. And I'm not sure that the acceptance of the “inherent vulnerability of the young children to natural disasters and the adverse impact of climate change” would have been conveyed in the unqualified words of paragraph 25 if, ultimately, the Tribunal proposed to put all of this to one side.
So does it matter if climate change factors were or weren't taken into account as part of the assessment on exceptional humanitarian grounds in this particular case? I think so.
It's one thing to hold that the hardships on adults and children resulting from climate change in low-lying states such as Tuvalu and Kiribati might theoretically be relevant humanitarian circumstances but No Finding is Made In This Case. It’s something else to say that these climate change related factual circumstances are relevant, and because they are relevant, form part of the (inevitably wide) matrix of circumstances that will always need to be assessed cumulatively, on a case by case basis. Perhaps in a future IPT decision the point will be clarified. I think the latter interpretation fits, not only with a natural reading of the case, but the policy and legal framework. There’ll be other views, of course.
The Tribunal appropriately clarified that it is not enough to claim to be impacted by climate change to get over the line on exceptional humanitarian grounds.
To my mind, it is not necessary to read down the decision any more than that.
By Vernon Rive on 14/08/2014 11:41:04 p.m. | Comments (0) | Print |
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